Plaintiff 1 and one other (Law Firm Gyeong, Attorneys Lee Gyeong-min et al., Counsel for the plaintiff-appellant)

Hosung General Construction Co., Ltd. (LLC, Kim & Lee LLC, Attorneys Park Sang-hwan et al., Counsel for the plaintiff-appellant)

September 4, 2013

1. As to the distribution procedures cases in this Court 2010 Dop34077, 2010 Dop 18440 (Dup), 23671, 2010 Dop 2368, 2010 Dop 23688, 2010 Dop 37380, 2012 Dop 29857 (Dup 2012),

A. Of the distribution schedule prepared on February 12, 2013, this Court rectifys each of 0 won for the plaintiffs as stated in the column for the first quoted amount in attached Table 5 attached hereto, and rectifys each of 1,521,609,780 won for the defendant as KRW 641,086,765, respectively;

B. Of the distribution schedule prepared by this court on March 12, 2013, the amount of dividends against Plaintiff 1 shall be 86,956,042 won, the amount of dividends against Plaintiff 2 shall be 73,981,568 won, and the amount of dividends against the Defendant shall be 162,457,379 won, respectively, and shall be corrected to 1,519,769 won.

2. The plaintiffs' remaining claims against the defendant are dismissed.

3. 1/10 of the costs of lawsuit shall be borne by the Plaintiffs, and the remainder by the Defendant, respectively.

With respect to the distribution procedures of this Court, the amount of dividends against the plaintiffs among the distribution schedule prepared on February 12, 2013, 2010, 3407, 2010, 18440, 23671, 2010, 2368, 2010, 23688, 2010, 37380, 2012, 29857, 2012, 2013, the amount of dividends against the plaintiffs is stated in the column for the amount for the application for dividends in attached Table 5. The amount of dividends against the defendant is described as KRW 1,521,60, 780, 666,879,829, 200, and KRW 86,956,976,479,785,79,7829, among the distribution schedule prepared on March 12, 2013.

1. Basic facts

(a) Loans and joint and several guarantees provided by plaintiffs 1 and Food Mutual Savings Banks;

On October 16, 2009, 000 won, 7,500,000,000 on the date of expiration of the credit term, Fue Mutual Savings Bank (hereinafter “Fueung Mutual Savings Bank”) set at 16 October 201, 201 as the maximum annual interest rate of 10%, 25% per annum, and 10% per annum of delay damages (hereinafter “instant loan”). On the same day, Plaintiff 1 provided a joint and several surety that covers the present and future obligations with respect to Fuung Mutual Savings Bank, including the instant loan obligations, to the extent of KRW 9,750,00,00,00,000, including the instant loan obligations.

(b) Establishment of a new mutual savings bank's right to collateral security;

on October 14, 2009, the Yongsan Mutual Savings Bank concluded a mortgage contract with respect to each of the buildings listed in the Songbag and the plaintiffs as stated in the separate sheet No. 1, each of the buildings listed in the separate sheet No. 2 in the separate sheet No. 1, and each of the buildings listed in the separate sheet No. 2 (hereinafter referred to as "No. 101") listed in the separate sheet No. 3 (in case of each of the buildings listed in the separate sheet No. 1 and the separate sheet No. 2), and each of the buildings listed in the separate sheet No. 3 (in order of priority, "○○ apartment, △△△△dong," "△△dong," "△△dong," and "Yongdong-dong land"), and completed the registration of the establishment of each of the neighboring buildings as follows.

1) As indicated in Appendix 1, Nos. 101, 102, 108, and 201, and ○○ apartment owned by Plaintiff 1, the registration of the establishment of a neighboring mortgage of each of the maximum debt amounts of 2,50,000,000, as stated in Appendix 4, was completed with respect to the apartment owned by Song 101, 102, 108, and 201, and each of the above real estates was registered as joint collateral (hereinafter collectively referred to as “instant Group A collective collateral”).

2) As to the land of △△-dong and △△-dong and the land of △-dong owned by the Plaintiffs as one-half shares, Incheon District Court was accepted on October 16, 2009 and completed the registration of creation of a neighboring mortgage of KRW 4,00,000,000 as the maximum debt amount, and each real estate was registered as joint collateral (hereinafter collectively referred to as the “instant Group B collective collateral security”). In addition, each of the above real estate was registered as joint collateral (hereinafter referred to as the “instant collective security”).

3) With respect to each building other than 108 and 201 among the respective buildings listed in the separate sheet No. 2 list, the registration of establishment of each of the following buildings was completed (hereinafter collectively referred to as the “instant Group C collective security” in total, as listed in the separate sheet No. 4 No. 2 through No. 37. The instant Group A collective security right and the instant Group B collective security right collectively referred to as the “instant entire collective security right”).

C. Subrogation of the loan obligation of this case by the plaintiffs

(1) Subrogation made as compensation for land in △dong;

The plaintiffs sold land to the Incheon Metropolitan City Urban Development Corporation, which is the implementer of the △ City Development Project, in accordance with the procedures for acquiring land, etc. for public works and for obtaining compensation for the said land in accordance with the Act.

Accordingly, the Incheon Metropolitan City Urban Development Corporation and Pudong Mutual Savings Bank agreed that Pudong Mutual Savings Bank shall pay KRW 1,015,000,000 for the right to collateral security on Plaintiff 1’s share in the land in Cheongdong and KRW 1,013,00,000 for the right to collateral security on Plaintiff 2’s share in order to repay the debt of the instant loan within the scope of land compensation to be paid to the Plaintiffs, and Pudong Mutual Savings Bank agreed to implement the procedure for the cancellation of the registration of the right to collateral security on the land in Cheongdong.

In addition, the Incheon District Court filed an application with the Incheon District Court for the seizure and collection order of each claim for compensation against the plaintiffs' claim for each compensation claim for the Dok-dong land of Incheon Metropolitan City for the Urban Development Corporation by subrogation. On June 29, 2010, the Incheon District Court 2010 Do 2010 Do 14505 Do 201, June 30, 2010, with respect to the compensation claim of plaintiffs 1, the Incheon District Court 2010 Do 2014506 decided on June 30, 2010, each of the above decisions was served on the Urban Development Corporation of Incheon Metropolitan City

According to the above agreement and decision, the Incheon Metropolitan City Urban Development Corporation paid each of KRW 1,01,463,842 on April 30, 2010, May 31, 2010, and July 5, 2010 for Plaintiff 1, and KRW 1,01,463,842 on July 5, 2010 for Plaintiff 2.

2) Repayment related to the voluntary auction by Plaintiff 1’s ○ apartment.

On February 23, 2012, Plaintiff 1 repaid KRW 200,000,000 out of the instant loans to the Incheon District Court, 201 another District Court, 62580, for the purpose of delaying the sale date of the real estate auction case, commenced with respect to the ○○ apartment, which was commenced by the Incheon District Court (Seoul District Court 201ta, 62580), and the Green Mutual Savings Bank filed an application for extension of the auction date with the Incheon District Court immediately

D. Establishment of subordinated collateral security by the Defendant and the attachment and assignment order of Nonparty 1’s application

1) On July 14, 2010 of this Court’s claim for construction cost, etc. filed with the Defendant against the Defendant, the Defendant paid the Defendant KRW 1,50,000,000,000 to the Defendant on the mediation date, and the Defendant paid KRW 500,000,000 until September 15, 2010, and KRW 500,000,000 until November 15, 201, and KRW 500,000,00,000 until January 14, 2011, each payment shall be made respectively. In the event that the Defendant does not pay each of the above amounts on each of the above payment dates, the Defendant shall lose the benefit of time, and the Defendant shall pay the remainder of the unpaid amount in addition to the annual interest rate of 20% from the day following the date of full payment to the Defendant.”

2) In order to secure a claim for the amount of liquidation payment as indicated in paragraph (1) (hereinafter “instant amount of liquidation payment claim”), the Defendant stated that each building listed in the separate sheet Nos. 1 and 2 is a joint collateral and completed the registration of creation of collateral security (hereinafter “instant subordinated collateral security”) which constitutes the maximum debt amount (hereinafter “instant subordinated collateral security”) as stipulated in Article 95307, Sept. 7, 2010, and completed the registration of modification with the content that the amount of the instant amount of debt should be reduced to KRW 1,950,000,000, as stipulated in Article 95308, Sept. 7, 2010.

3) Nonparty 1 applied for the attachment and assignment order of claims regarding KRW 86,595,381 of the instant amount of the instant amount of the conciliation payment claim to Daejeon District Court 2012TTTT No. 16421, and received the decision. The said decision became final and conclusive on January 1, 2013.

E. Transfer, acquisition, etc. of loans of this case

on March 21, 2012, Fuman Mutual Savings Bank entered into a contract for the transfer of claims with MMMMMS (hereinafter “MMMMMS”) with the following contents, and completed each registration of the transfer of claims with respect to each building listed in the separate sheet 2 on March 21, 2012.

Article 1 Section 1. Fari Mutual Savings Bank, together with claims to collateral security, completed the registration of creation as shown in the separate sheet No. 2 as to each building listed in the separate sheet No. 4, which covers all claims held in the margin under the collateral security contract listed in the separate sheet No. 4, shall transfer the amount of transfer to Mari Mari Mari, MariM, which shall be transferred to Mari-M, in the amount of KRW 6,546,628,141.

Details of transfer and acquisition amount: Principal 5,363,951,93, interest 1,182,676,148 won (based on March 30, 2012)

F. Preparation of the court's distribution schedule and the plaintiffs' objection to distribution and the lawsuit of this case

1) From 2010 to 3407, 2010 to 1840, 2010 to 23671, 2010 to 2368, 2010 to 23738, 2012 to 2987 (Dual) auction of real estate (hereinafter “instant auction”) as stated in [Attachment II List 1, (2), (9) through (20, 222 through 25, 27 through 38, the Plaintiffs were to prepare the above distribution schedule to the Defendant on February 12, 2013 to 20 to 1, 207, and to 2, to 30 to 5,00 to 5,00 to 2,00 to 3,00 to 15,00 to 2,000 to 2,000 to 2,000 to 2,017 to 2,017 to 2,017 to 2,07 to 16,07 to 2.

2) In addition, when the sales price was fully paid on March 12, 2013 in accordance with the decision of permission for sale on each of the buildings listed in paragraphs (3) and (4) of [Attachment 2] in the auction procedure of this case, the court filed a lawsuit of this case against the Defendant in the amount of KRW 887,779,624, 162, 457,379, excluding the amount distributed to the pertinent tax withholding authority, Nam-si, which is the pertinent tax withholding authority, and the amount of the remainder, other than the amount distributed to the first mortgage seizure authority, was distributed to the Defendant, and the Plaintiffs made a distribution schedule with the content not distributed to the Plaintiffs (hereinafter “the second distribution schedule of this case”; the date of distribution in which the said distribution schedule was made; the Plaintiffs raised an objection against the said amount of distribution against the Defendant on the date of the above distribution; and on March 18, 2012, 2013Ga2693.

[Reasons for Recognition] A without dispute, Gap evidence 1 through 3, 7 through 12, 14, Eul evidence 1 through 3, and 6 through 8, non-party 4's testimony, non-party 4's testimony, the result of this court's order to submit financial transaction information to Fuho Mutual Savings Bank, the purport of the whole pleadings, as a whole.

2. Determination as to the cause of action

(a) Formation of the right of indemnity;

According to the above facts, it is reasonable to view that the plaintiffs 1,211,463,842 won in total, and 1,01,463,842 won in subrogation of the plaintiff 2, and 1,000 won in subrogation of 1,215,42 won in subrogation of the plaintiff 2,000 won in accordance with Articles 441, 425(2), 370, and 341 of the Civil Act and 296,874,80 won in subrogation of the above amount of 1,296,874,80 won in total, and 200,000 won in subrogation of the plaintiff 1,211, 463, and 342 won in subrogation of the debtor, or 296,874,80 won in subrogation of the above amount of 2,000 won in total, 200,000 won in subrogation of the plaintiff 2,500 days in subrogation of the Civil Act.

(b) Presumption of subrogation by the person performing the obligation;

1) Pursuant to Articles 481, 482(1), and 483(1) of the Civil Act, the Plaintiffs, who have legitimate interest in repaying the obligation of the instant loan as a surety, may subrogate the part of the instant loan claims extinguished by subrogation of the Plaintiffs among the instant loan claims to the person liable for reimbursement within the scope of the respective right to reimbursement against Song kin, and may also subrogate the right to such security in order to receive the subrogated claim.

However, it is reasonable to view that each of the instant Group C, barring special circumstances, has secured the entire amount of the instant loans, along with the instant Group A’s collective security right and the instant B’s collective security right, within the scope of the maximum debt amount, as well as the entire amount of the instant loans, to secure the current and future claims against the Defendant, as seen earlier, several collective security rights were created on each of the real estate listed in the attached Tables 1 through 3, as seen above, in order for the Defendant to secure the whole of the claims against the Defendant, including the instant loans, as well as the current and future claims against the Defendant.

As above, insofar as each of the instant Group C’s claims for the instant loans has also been extinguished by the subrogation of the Plaintiffs, the Plaintiffs may exercise the right of subrogation of the obligor in proportion to the amount paid out to each of the instant Group C’s respective collective security interests (hereinafter collectively referred to as the “instant collective security interests”) as well as to the amount paid out by the respective of the instant Group C’s claims for the instant loans.

2) Judgment on the defendant's assertion

In regard to this, the Defendant asserts to the effect that each of the instant C Group C Group C Group B’s secured claims, which differs from each of the instant secured claims, cannot be subrogated to each of the instant C Group C Group C’s secured claims, by having different scope of the secured claims, as they are individual, cumulative, and not joint mortgages. Therefore, the Defendant asserts to the effect that the Plaintiffs would not be subrogated to each of the instant C Group C Group’s secured claims, which differs from the instant secured claims, by having repaid the instant secured claims as a surety to the instant

In light of the following circumstances revealed in the facts as seen earlier, Feul Mutual Savings Bank acquired the entire collateral security right of this case to secure the present and future debts, including the claim for the loan of this case against Beul, but the sum of the maximum debt amount of the entire collateral security right of this case exceeded the claim for the loan of this case, but the individual maximum debt amount of the entire collateral security right of this case falls short of the original amount of the loan of this case. If the entire collateral security right of this case is deemed to have a joint collateral relationship between the entire collateral security right of this case, Peul Mutual Savings Bank is 4,00,000 won, which is the maximum debt amount of the entire collateral security right of this case, and also falls short of the original debt amount of the loan of this case, the entire collateral security right of this case shall be deemed to have been accumulated within the scope of several joint collateral mortgages which are the parties to the contract establishing the entire collateral security right of this case, rather than the intent to secure the loan of this case.

However, in light of the following circumstances revealed in full view of the purport of the entire pleadings, it is difficult to view that, in the event that the entire collective security right of this case is a cumulative collateral which is not related to the joint collateral between the parties, as a matter of course, the claims secured by each of the entire collective security right of this case are changed and repaid as a surety of the entire collective security right of this case, it cannot be deemed that the obligor cannot be subrogated to each of the instant collective security rights of this case. Since there is no evidence to acknowledge this, the Defendant’s assertion has no reason to further examine

① In light of the purport of the parties, it is reasonable to view that the parties to the contract of the entire right to collateral security of this case concluded a contract to exercise the right to preferential reimbursement from the proceeds of sale of the pertinent real estate to the maximum debt amount, in cases where the entire right to collateral security of this case was sold through auction proceedings, the parties to the contract of the entire right to collateral security of this case, regardless of whether there was the existence of other groups’ right to collateral or whether there was a simultaneous auction, and the entire right to collateral security of this case was independently exercised within the scope of the maximum debt amount determined by autonomous intent of the group, regardless of whether there was the right to collateral security of this case, where the entire right to collateral security of this case was sold through auction proceedings.

② Therefore, if it is deemed that a Feung Mutual Savings Bank, which was determined as a secured claim, owns only part of the claims for loans, etc. of this case, which are reverted to each group after being divided into the entire collateral of this case and reverted separately to each group, it would be contrary to the intent of the parties to the entire collateral of this case. On the other hand, while interpreting that the claims for loans, etc. of this case are divided into the entire collateral of this case and reverted separately to each group within the scope of the maximum debt amount, if it is possible to repay the entire claims for loans, etc. of this case, etc. of this case, within the scope of the maximum debt amount of each group, it would result in the result that the secured claim was not determined or specified before reporting the claims for the relevant collateral of this case, which

③ In addition, the entire right to collateral security of this case is not registered with the purport that it is the joint collateral of another group. The parties to the entire right to collateral security contract of this case set the maximum debt amount of the entire right to collateral security of this case on the basis of the appraisal value of individual real estate, which is only small amount [the sum of the maximum debt amount of the entire right to collateral security of this case shall be 19,849,800,000 won [the sum of the maximum debt amount of the entire right to collateral security of this case shall be 15,849,800,000 won [the sum of the maximum debt amount of the entire right to collateral security of this case shall be 15,849,80,000 won [the sum of the maximum debt amount of the above right to collateral security of this case shall be 4,00,000,000 won which is the maximum debt amount of the entire right to collateral security of this case] compared with the maximum debt amount of each group of this case, it is difficult to obtain only the maximum debt amount of the plaintiffs's maximum debt amount of collateral security right of this case within 300,

④ On the other hand, the plaintiffs, who are in the position of the surety, will be able to preserve the ownership of the real estate which the plaintiffs provided as collateral in accordance with the order of execution of the entire collateral security in this case. Thus, in the case of the enforcement of the right to collateral security, the unstable status is most difficult to expect the voluntary repayment of the right to collateral security against the debtor due to the aggravation of the debtor's credit or financial ability. As seen earlier, as seen earlier, the junior mortgagee has trust in protecting only the remainder after deducting the maximum amount of priority mortgage from the exchange value of the real estate. As such, as in the case of the joint collateral security with the plaintiffs who are the property surety, there is a need to allow the repayment obligee to subrogate the entire right to collateral security in this case.

C. Scope of subrogation by the person performing the obligation

Furthermore, in relation to the scope of subrogation, where there is a health and collateral security transaction, that is, where part of the claim has been subrogated before the claim secured by the collateral security is determined, it may not be transferred to the subrogation. However, if the claim secured by the collateral security is determined, unless the amount of the claim secured by the collateral does not exceed the maximum debt amount of the mortgage, the remainder is legally transferred to the subrogation regardless of whether the additional registration of partial transfer of the mortgage has been made (see Supreme Court Decision 2001Da53929, Jul. 26, 2002). In addition, if there is a subrogation for a part of the claim, the subrogation can exercise the obligee's right in proportion to the amount of the claim discharged under Article 483(1) of the Civil Act. In addition, if several persons make a payment by subrogation and make a supplementary registration of partial transfer, each of them shall be deemed to have been divided in proportion to the amount paid by subrogation as part of the right to collateral security in proportion to the amount paid by each of them.

According to the above facts, it is reasonable to view that the secured claim of the entire collateral of this case is finally established by submitting to the court of execution of the auction of this case a claim statement setting forth the scope of the secured claim to be exercised within the scope of each maximum debt amount of the instant auction, and by submitting to the court of execution of the auction of this case a claim statement setting forth the scope of the secured claim to be exercised within the scope of each maximum debt amount of the instant auction, the right to the remaining portion of the secured claim secured by each of the respective maximum debt amounts of the instant mortgage of this case, which is naturally transferred to the plaintiffs, who are the subrogation, the right to the remaining portion of the secured claim secured by each of the respective maximum debt amounts of the instant mortgage of this case, which is the remainder, which is naturally transferred to the plaintiffs.

Therefore, the Plaintiffs shall have the right to preferential reimbursement within the scope of the remaining maximum debt amount (hereinafter “the remaining maximum debt amount”) excluding each amount apportioned to MMNs from the respective maximum debt amount of the instant right to collateral security (the same shall apply to the remaining maximum debt amount of the instant right to collateral security).

(d) Correction of a distribution schedule;

A) Method of distribution

Ultimately, the remainder, which remains after deducting the amount distributed to the pertinent tax attachment authority, small lessee, and MMz, from the actual amount of dividends, should be preferentially apportioned to the Plaintiffs by setting the maximum maximum debt amount.

However, in this case, the remaining sale price (the remaining sale price on the date of the first distribution of this case is KRW 1,608,205,161, and the remaining sale price on the date of the second distribution of this case is KRW 162,457,379) is not only the sum of the remaining maximum debt amount, but also the amount of KRW 2,224,463,842 (Plaintiff 1’s subrogation payment ＋ KRW 1,211,463,842) which is the sum of the respective subrogated payment on the part of the principal of the claim for reimbursement of the plaintiffs’ reimbursement + KRW 1,01,463,842 which is the sum of the respective subrogated payment on the part of the plaintiff 2's subrogation payment ＋ KRW 1,013,00,000). Thus, in this case, the amount to be distributed to the plaintiffs can be deemed the amount

B) Justifiable dividends

(1) The first distribution date of the instant case

Therefore, the reasonable amount to be distributed to the plaintiffs on the date of the first distribution of this case is within the scope of 875,608,205,161 won of the remaining sale price for the plaintiff 1,843,592 won divided in proportion to the remaining sale price for the plaintiff 1 875,608,205,205,161 won x 1,211,463,842 won /2,224,463,842 won ; hereinafter the same shall apply) ; 503,504,015 won as stated in the part of the attached Table 5’s application for dividend payment for the plaintiff 2 ; 732,361,568 won (1,608,205,161 won x 13,000,000,224,284,284,271 of the attached Table 5’s application for dividend payment ;

In addition, 66,879,829 won (1,608,205,161 won - 503,504,015 won - 437,821,317 won) remaining after distributing the remaining proceeds to the plaintiffs should be distributed in proportion to the amount of the claims that the defendant and the non-party 1 who completed the subordinated mortgage of this case. As such, the reasonable dividend amount of the defendant is 641,086,765 won (66,879,829 x 2,152,328,767 won x 2,328,767 won x 86,595,381 won belonging to the defendant among the claims of this case) is 2,152,328,767 won + 86,595 won belonging to the non-party 1).

(2) The second distribution date of the instant case

Next, the reasonable amount to be distributed to the plaintiffs on the date of the second distribution of this case is 86,956,042 won as plaintiff 1 seeks, among the amount of 162,457,379 won in proportional distribution of the remaining sales price of 162,45,379 won for plaintiff 1 (162,457,379 won x 1,211,463,842 won x 2,224,463,842 won), and the amount of 73,981,568 won for plaintiff 2 (162,457,379 won x 1,013,00,000 won x 2,224,463,842 won).

In addition, the reasonable amount to be distributed to the defendant is 1,519,769 won (162,457,379 won - 86,956,042 won - 73,981,568 won) remaining after distributing the remaining proceeds to the plaintiffs.

C) Correction of the distribution schedule

Inasmuch as a lawsuit of demurrer against a distribution filed by a creditor is to resolve a dispute surrounding the amount of dividends among the creditors who are the opposing parties, the judgment of the lawsuit must change the ownership of the portion of dividends in dispute among the creditors who are the plaintiff and the defendant (see Supreme Court Decision 2000Da41844, Feb. 9, 2001). As such, the amount of dividends 1,521,609,780, out of the first distribution schedule of this case, the amount of dividends 641,086,765, and the amount of dividends 880,523,015 (1,521,609,609,780 - 641,086,765, which is distributed to the defendant, should be corrected by each real estate in proportion to the amount of reasonable dividends of the plaintiffs in accordance with the following formula:

[ Food] Attached Form 5 x The sum of the amounts erroneously distributed to the defendant 880,523,015 won/the defendant and the non-party 1 [the sum of the amounts erroneously distributed to the defendant 880,523,015 won + (86,595,381 won - 25,793,063 won)]

Next, among the second distribution schedule of this case, the amount of dividends against Plaintiff 1 should be 86,956,042 won, the amount of dividends against Plaintiff 2 should be 73,981,568 won, and the amount of dividends against the Defendant should be 162,457,379 won, respectively.

3. Conclusion

Therefore, the plaintiffs' claims against the defendant are accepted within the scope of the above recognition, and each of the remaining claims is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges Park Jong-gu (Presiding Judge)